On 23 December 2014 the Stormont House Agreement was published, marking the conclusion of 11 weeks of talks between the Northern Ireland Executive and the governments of the UK and the Republic of Ireland. The talks had aimed to resolve long-standing problems in Northern Ireland, including its so-called legacy issues.

These refer to the continued impunity surrounding human rights violations committed during the The Troubles, the conflict which erupted in Northern Ireland in the late 1960’s. In particular, they refer to the estimated 200,000 family members left bereaved by the 3,600 killings which took place during the period, and their attempts to seek justice.

The Stormont House Agreement laid the groundwork for the creation of the Historical Investigations Unit (HIU), a would-be independent body tasked with taking forward investigations into Troubles-related deaths. It would take over the work of two separate bodies: the legacy branch of the Office of the Police Ombudsman for Northern Ireland and the Historical Enquiries Team. The legacy branch of the Office of the Police Ombudsman is currently tasked with investigating allegations of police involvement in killings during The Troubles. The Historical Enquiries Team was a stand-alone unit within the Police Service of Northern Ireland (PSNI) created to investigate unsolved murders from the period. It was closed in September 2014 as a result of Department of Justice budget-cuts, partly due to financial penalties imposed by the UK Government on the NI Executive for its failure to implement heavily criticised welfare reforms.

Following the Stormont House Agreement, the HIU was to be “victim centred” (section 31) and endowed with “full policing powers” (section 36). Importantly, it was to be empowered by the UK Government’s commitment to “make full disclosure” of all documents and information relating to the body’s investigations (section 37). This would enable it to comprehensively consider outstanding cases before submitting them to the Director of Public Prosecutions (PPS) for review and potential prosecution. Its formation envisaged bringing the UK in line with jurisprudence surrounding Article 2 of the European Convention for Human Rights, which protects the right to life. Article 2 has been steadily expanded as a result of determined judicial activism at the European Court of Human Rights (ECHR),whose jurisdiction the UK remains under for the time being. As a result, a positive obligation rests on states to ensure independent, effective, prompt and transparent investigations into killings committed by state actors, or in circumstances suggesting state collusion.

However, more than two years on from the Stormont House Agreement and in spite of renewed talks aimed at hastening its implementation, the HIU has yet to come into existence.

That the HIU has not yet been formed can ostensibly be deemed the result of a continuing dispute between the UK Government and Sinn Féin, the main political party representing nationalist communities in Northern Ireland. The dispute centres upon section 37 of the Stormont House Agreement, which while committing the UK Government to making full disclosure of documents to the HIU, simultaneously opened the door for disclosure to be limited on grounds of national security, stating: “In order to ensure that no individuals are put at risk, and that the Government’s duty to keep people safe and secure is upheld, Westminster legislation will provide for equivalent measures to those that currently apply to existing bodies so as to prevent any damaging onward disclosure of information by the HIU.” Sinn Féin oppose the inclusion of any clause in the HIU’s founding legislation that might allow the UK Government to censor information about Troubles-related deaths before handing it over to the HIU, arguing that it would undermine the ability of the HIU to carry out proper investigations.

As a result, relatives of victims killed on all sides during The Troubles, with the help of human rights lawyers and organisations such as Relatives For Justice, have continued to seek justice through the only means left open to them: the PSNI’s Legacy Investigation Branch and the Director of Public Prosecutions.

The Department of Legacy and Justice at the PSNI was established in February 2016. Its Legacy Investigation Branch (LIB), which was formed to replace the Historical Enquiries Team, is currently investigating 1,118 killings which took place between 1969 and 2004. On the basis of its investigations, it submits cases to the Director of Public Prosecutions who then decides whether the cases merit prosecution or not. Human rights lawyers are also engaged in preparing legacy-cases for submission to the Public Prosecutor.

The LIB has faced criticism from human rights organisations regarding its independence. A Freedom of Information request in 2015 revealed that 23 out of the Branch’s 53 staff were formerly members of the Royal Ulster Constabulary, raising questions about a potential conflict of interest. The LIB also faces serious issues of funding, with the UK Government refusing to improve its over-stretched budget.

The DUP, the main political party representing unionists in Northern Ireland and the largest party in the State following its recent snap-election, has repeatedly accused legacy investigations of being skewed against “deaths attributed to the State”, in favour of paramilitaries. The party claims that although 90 percent of killings during The Troubles were carried out by paramilitaries, the emphasis of legacy investigations is nonetheless being placed on the alleged 10 percent committed by State forces.

On 22 February 2017, Julian Lewis, MP for New Forest East stated, “… people are starting to use the same techniques in Northern Ireland against them [ex-military] as were used against veterans of Iraq”, and called for a statue of limitations which would prevent “the prosecution of veterans to do with matters that concerned prior to the date of the Belfast [Good Friday] Agreement.”

In January 2017, Sir Gerald Howarth, MP for Aldershot and former minister at the Ministry of Defence, called on the government to “… protect the interests of former British soldiers, currently being charged by the Sinn Féin supporting Director of Public Prosecutions of Northern Ireland, with murder for events which took place 40 years ago.”

Similarly, in December 2016, Sir Henry Bellingham, MP for Norfolk, whilst speaking at a debate on legacy issues, claimed, “We cannot simply revisit cases from 42 years ago and try to reinterpret them through the prism of the 21st century, with its emphasis on human rights.”

A guiding line of this narrative is the Conservative Party’s repeated assertion of “the danger of seeing the past rewritten,” yet this is undermined by the facts. The LIB is currently investigating 1,118 Troubles-related killings. 530 of these are attributed to republican paramilitaries, 271 to loyalists, and 354 to security forces, with 33 undesignated. In other words, cases relating to the security forces make up roughly 32% of the LIB’s workload. The DPP, meanwhile, which receives around 40,000 cases per year, has taken the decision to prosecute 12 Troubles-related cases since the current Director was appointed in November 2011. Of these 12 cases, 7 have been linked to republican paramilitaries, 3 to loyalists, and 2 to the military. Cases are only taken forward for prosecution if the evidence is sufficient to provide a reasonable prospect of conviction and prosecution is in the public interest.

Statistics on killings during Troubles Credit: BBC

Impunity is a core element in the abuse of power. Attempts to extend it are attempts by the powerfulto expand the basis upon which they can act without accountability or fear of reprisal in the present and the future. When Theresa May, James Brokenshire and the DUP claim that the past is in danger of being rewritten, they are serious. They mean that justice for the oppressed is coming closer to finding its place in the picture of the past and changing the dynamics of power in the present. Through their determined judicial efforts, aided by human rights lawyers and non-governmental organisations in Northern Ireland, family members of those killed during The Troubles threaten to set a precedent that would undermine the way in which the UK Government exercises power, particularly through the British military and intelligence services, both within the UK and abroad.

The UK Government has attempted to block every path that could lead to historical justice in Northern Ireland. There is a commitment to making full disclosure of documents to the HIU in the Stormont House Agreement, however limitations to full disclosure has been built into these processes. This is compounded by the refusal to release extra funding for the PSNI whilst the Agreement remains unimplemented, the criticism of the work of the PSNI’s legacy branch, the attempts to to undermine the Director of Public Prosecutions in Northern Ireland and the targeting of human rights lawyers for slander and intimidation. In doing this, the UK Government has provided clear insight into its stance on accountability and justice when it comes to human rights violations committed in its exercise of power: neither will be tolerated.

This approach may give little hope to victims and survivors of crimes committed during The Troubles; however, they continue to fight for justice, accountability and a change in the orientation of power, and as the Derry-based Pat Finucane Centre recently outlined, they have no intention of going quiet: “Your government is waiting for us to die off but our families will not go away. We demand a fully independent HIU and implementation of the other legacy proposals. All bereaved families have a right to truth, and to have their proposals on how to achieve that right respected. These are rights, not privileges.”

On 13 September 2016, a criminal complaint was submitted to Dublin’s District Court by a Bahraini-born British citizen. It was timed to coincide with a conference of international prosecutors taking place at the Convention Centre in Dublin, and the arrival of the Bahraini Attorney General, Ali Bin Fadhul Al-Buainain, in the country.

The complaint accused Al-Buainain of aiding and abetting torture in Bahrain. In particular, it accused him of being ultimately responsible for the torture of Jaafar Al-Hasabi, a political activist, following his arrest at Bahrain International Airport in 2010.

Al-Hasabi, whose arrest came amidst a crackdown on pro-democracy activists in the country prior to the popular uprisings of early-2011, was held in detention for six months, with his time in prison extended by Al-Buainain, in his role as Attorney General, twice. While detained, he was beaten, blindfolded, threatened, subjected to electric shocks, deprived of sleep and held in stress positions. He was released without charge in 2011.

In Ireland, he was hoping to rely on a rarely used principle of international law to see justice done.

Universal jurisdiction is a potentially radical legal weapon. At its best, it can allow victims of some of the worst crimes, abuses and attacks on human dignity to initiate ‘bottom-up’ judicial investigations into crimes perpetrated against them. It allows them to do this outside of the country in which the crimes took place.

Its roots can be traced back to Ancient Rome and the idea that laws might exist which are common to all mankind, as well as the Enlightenment conception of right and wrong as universally definable. A key part of the idea today is the thought that crimes which violate human dignity affect the entire world, and that we are all responsible for stopping them.

Through gathering testimonies, documenting and protecting evidence, compiling criminal complaints and submitting them to national prosecutors, victims and survivors of systematically orchestrated crimes including genocide, killings, kidnappings, torture, enforced disappearance, rape, sexually slavery, and racial and cultural violence can use universal jurisdiction as a legal pressure point in the battle to crack the stare of impunity often faced when those who commit these crimes hold power in victims’ home countries.

It also encompasses the opportunity for groups of victims, either independently or with the help of ordinary individuals, non-governmental organisations and human rights lawyers, to petition courts to shut down ‘safe-havens’ for political dictators, repressive military leaders and war lords fleeing justice.

It allowed British police to detain the Chilean dictator Augusto Pinochet on the basis of an arrest warrant issued in Spain for crimes committed in Chile, and for a Spanish court to prosecute the former Argentinian naval officer Adolfo Scilingo for his role in mass killings and arbitrary detentions during the “dirty war” conducted by the Argentinian military regime in the 1970s. It opened the door for survivors of the brutal regime of the Chadian dictator Hissène Habré to pursue him in courts in Senegal and Belgium before eventually bringing him to trial in Chad, and enabled the nazi war-criminal Albert Eichmann to be tried in Israel for crimes committed before it had come into existence as a state. It has even markedly reduced the size of George W. Bush’s world.

And it was recently debated in the Dáil, as the Universal Jurisdiction of Human Rights Bill, introduced by Mick Wallace in April 2015.

Protestors in London in 1998 demand Pinochet be brought to trial (Credit: Nuremburg Human Rights Centre)

At least 147 countries can exercise some form of universal jurisdiction. As things stand, Irish courts can do so in two limited situations.

An outline for the first was drawn in September 1992, when Ireland signed up to the United Nations Convention Against Torture. The Convention places an obligation on the State to detain suspected perpetrators of torture when they come into the country and to extradite them for prosecution or prosecute them in Ireland. They must do so regardless of where the crimes are suspected to have been committed, and irrespective of the nationality of the accused or whether an Irish citizen was affected by the crimes. The obligation also extends to those who have aided or abetted torture. The Convention was incorporated into Irish law in 2010 through the Criminal Justice (United Nations Convention Against Torture) Act, with sections 2 and 3 explicitly providing for universal jurisdiction.

The second situation came about on 1 June 2002, with the coming into force of the Rome Statute and the creation of the International Criminal Court (ICC). The ICC was given the power to prosecute genocide, war crimes and crimes against humanity committed in any country that signed up to the Rome Statute. The affects of its formation were made tangible in Ireland in 2006, through the International Criminal Court Act. This granted Irish courts jurisdiction to prosecute some of the offenses falling under the mandate of the Court, namely war crimes as prescribed for in the Geneva Conventions, even if they are committed outside of Ireland and have no direct connection with an Irish person.

In spite of this, the potential of universal jurisdiction has not been realised in Ireland.

The Dublin District Court rejected Al-Hasabi’s criminal complaint, side-stepping its obligations under the UN Convention Against Torture by citing a lack of evidence to connect Al-Buainain to the crimes. And, on 30 March 2017, Wallace’s Bill was defeated, with Fine Gael and Fianna Fáil voting against it being given a second reading.

The Bill would have expand the wording of section 7 of the International Criminal Court Act from: “Any person who commits genocide, a crime against humanity or a war crime is guilty of an offence” to: “Any person, whatever their nationality and wherever in the world, who commits a crime against humanity, a war crime or genocide, is guilty of an offence.” This would have given Irish courts the power to prosecute irrespective of the perpetrator’s home country having signed and ratified the Rome Statute or not. In doing so, it would escape one of the Court’s greatest flaws. To date, 124 states have signed up to the Rome Statute, but, in terms of human rights violations, some important ones have not, including China, Russia, the United States, India, Israel, Turkey, Saudi Arabia and the majority of the Central-Asian bloc, all of who stand outside its jurisdiction as a result.

The Bill would also have granted Irish courts jurisdiction over crimes against humanity and genocide, which section 12 of the International Criminal Court Act currently keeps out of their reach.

The Minister for Justice, Frances Fitzgerald, was absent for the debate, so the Minister at the Department of Agriculture, Food and the Marine, Andrew Doyle, spoke on behalf of the Government, opposing the Bill.

He explained its refusal to support with reference to the opinion of the Attorney General that it would be “constitutionally unsafe” to go ahead with it in its current form without a “widespread and thorough review of international law”, on the basis of Article 29 of the Constitution, which holds that Ireland must follow “generally recognised principles of international law” in its conduct with other States.

The conservative approach adopted by the Government is the kind often seen when it comes to universal jurisdiction.

The tool is deemed politically sensitive, potentially de-stabilising, and diplomatically dangerous, with political leaders, usually covered by immunity whilst in office, fearing they will be met with reprisals for their acts come the end of their term.

As a result, where specific national legislation providing for universal jurisdiction is put in place, it commonly frames it in the narrowest terms possible, packing itself with obstacles for victims and survivors, as potential litigators, to overcome.

This is now the case in Belgium, which had taken a lead role in the development of universal jurisdiction following the enactment of a broad national law in 1993, but which repealed it in 2003 under pressure from the US and others, and replaced it with a much weaker one.

However, this is not the only trend. Several countries have taken a different approach to universal jurisdiction, most prominently France, Luxembourg, the Scandinavian countries, Argentina, Senegal and Germany, where the capacity for universal jurisdiction investigations was increased in 2009, and a case has recently been submitted against high-ranking members of the Assad-regime by Syrian victims of war crimes and crimes against humanity.

In arguing that the Bill should not be moved forward because doing so would have necessitated an analysis of a complex part of international law, and thus implying that it did not merit the time or resources the analysis would require, the Government showed its true colours when it comes to human rights and impunity. An analysis of the state of the relevant international law was actually carried out by Amnesty International in a submission made to the Government during the preparation of the International Criminal Court Act, in 2003. They found there to be strong arguments not only that universal jurisdiction for genocide and crimes against humanity is part of international customary law, but that a duty is owed by States to the international community to ensure that these crimes do not go unpunished. Since then, the application and scope of universal jurisdiction has only increased.

The Universal Jurisdiction Bill may have been halted by the Government, however it should get us thinking about ways in which we can turn existing instruments, such as international law and the national courts, into weapons to circumvent the intransigent conservative ideology of Irish politics, and (re)empower the locally and globally disenfranchised.

Let us wake up! Let us wake up, humankind! We’re out of time. We must shake our conscience free of the rapacious capitalism, racism and patriarchy that will only assure our own self-destruction.

These are the words of Berta Cáceres, the community organiser, human rights defender, environmental activist, indigenous Lenca woman, leader and rebel who was shot dead one year ago, on 3 March 2016, by unidentified gunmen at her home in La Esperanza, the capital city of the department of Intibucá, in south-western Honduras.

Berta was a co-founder of the Consejo Cívico de Organizaciones Populares e Indígenas de Honduras (COPINH), an organisation fighting neoliberalism and patriarchy in Honduras and working for respect of human rights, and the rights of indigenous peoples in particular. She was a long-term opponent of internationally fundedexploitative development projects in indigenous territories in Honduras, such as the Agua Zarca hydroelectric dam, set to be built on the territory of the Lenca people in the Río Blanco. Her name had been on a hit-list of social and environmental activists given to a US-trained specialist military unit in Honduras months before her death. Recent information leaked from court proceedings suggest a leading role was played in her assassination by Honduran military intelligence services.

The killing of the celebrated indigenous activist led to wide-spread and sustained coverage in the Honduran, Central American, and international media. In its aftermath, eight people have been arrested, including employees of the Agua Zarca dam and current and ex-military officers, however, no convictions have materialised and the intellectual authors of her assassination remain untouched. Serious failingsin the investigative process, including the failure to call on the sole eyewitness of the killing to identify suspects, have held back any movement towards justice for Berta’s family, community, or her colleagues in COPINH. Similarly, the wide-spread outcry of indignation at Berta’s murder has not resulted in any steps towards greater protection for the indigenous peoples in Honduras who are fighting for their right to exist and the safeguarding of the open, communal, sufficient and balanced nature of our environment.

In 2016, at least 281 human rights activists were killed worldwide as a direct result of their human rights-based work. Of these victims, 49% percent were working on issues connected to land, environmental and indigenous rights, such as illegal logging, water pollution, population displacement, attacks on self-organisation of agricultural labourers, and violations ofInternational Labour Organization Convention 169, an international treaty specifically safeguarding indigenous rights to which the overwhelming majority of Central and South American countries are a party. In the same year, 33 deaths were reported in Honduras, an increase from the 17 killings reported in 2015, eight of which were directly connected with land, environmental and indigenous rights.

Repression of environmentally conscious, active and effective indigenous persons in Honduras is long-standing. It is now also systematic, with a wide-array of tactics being employed by State and non-State actors to obstruct, scare and repress activists. On 11 February 2017, an attempt was made to arrest Miriam Miranda, another community organiser, human rights defender, environmental activist, leader and rebel, an indigenous Garifuna woman, on arbitrary grounds, when her car was stopped in La Ceiba, northern Honduras. She was also verbally abused and threatened by police. Miriam was the co-recipient, along with Berta Cáceres, of the Óscar Romero Human Rights Award in 2015. She is the coordinator of the Organización Fraternal Negra de Honduras (OFRANEH), an organisation founded in 1978 to protect the territorial and collective rights of the indigenous Garifuna people, in the context of large-scale displacement of Garifuna communities to make way for tourism projects in towns such as Trujilo along Honduras’ scenic eastern coast. In her case, as in that of Berta Cáceres, the Inter-American Court of Human Rights had directed the Honduran government to take precautionary measures to ensure her safety. Such directives rely on the political will of the State in question, and often prove ineffective, as in the case of Victor Vásquez, President of the Consejo Indígena de Simpunla and the leader of the Movimiento Indígena Independiente Lenca de La Paz (MILPAH), who was shot by military personnel during an eviction of indigenous farmers in Santa María, La Paz, on 18 January 2017, or in the case of his fellow MILPAH member, Ana Mirian Romero, who suffered an arson attack on her home, and has received multiple death threats as a direct result of her work. On 18 October 2016, José Ángel Flores, President of the Movimiento Unido Campesino del Aguán (MUCA), and his fellow MUCA member Silmer George, were targeted and killed in a drive-by shooting in Tocoa, Colón, in the Aguán valley in northern Honduras. The Inter-American Court had requested the Honduran government to implement precautionary measures for José’s protection in 2014, but the State failed to comply. The list could go on; it is constantly expanding. On 20 February 2017, José de los Santos Sevilla, a community leader of the indigenous Tolupán people, who are fighting for their ancestral territorial rights to be respected in the face of industrial-scale logging and mining projects, was shot dead in his home in La Ceiba. These crimes are compounded by almost complete impunity.

The violations perpetrated against those indigenous peoples who speak out and take direct action to counter the dominating narrative of development in Honduras, unequal economic expansion centred around resources exploitation, monoculture, the development of tourism, and unregulated special development regions, have at times been directly linked to the right-wing Government of Juan Orlando Hernéndez and the ruling National Party, who came to power following the US–backed coup d’etat in June 2009, and defeated the popularly-formed LIBRE party in national elections dogged by killings of political figures and LIBRE activists in November 2013. The increase in the ferocity of these violations is occurring alongside massive US aid to the country, which amounted to US$98.3 million in 2016. The release of the aid money is ostensibly conditional on the country satisfying human rights standards, yet has continued unimpeded in spite of the verifiable increase in human rights violations and killings of human rights defenders in the country. A large portion of the financial aid, US$18 million in 2016, has been earmarked for the Honduran military and police services despite their repeatedly reported role inthese human rights violations.

As the Honduran government steps up its programme of extractivism, (there are currently 411 granted mining concessions in Honduras, covering an area of 6,630km), and international investmentin extractive industries under the guise of development-aid continues, indigenous groups and activists in the country find themselves under increasing pressure. Amidst attempts by the global tourist industry to exploit as-of-yet relatively untouched areas of the Caribbean coast gather speed, and the value of controlling ‘recession-proof’ resources such as water becomes more apparent, they will face further challenges.

Yet in spite of the violence that has been employed against them and the mounting risks they face, indigenous peoples and environmental rights defendersin Honduras continue to organise. Each killing, attack and threat has the potential to fracture links between their organisations and to undermine grassroots movements and activism, yet solidarity continues to grow. In Honduras, indigenous peoples are in revolt. They are fighting for their rights to exist in a system that has no part for them to play beyond subservience. When they refuse this role, they become targets, but they also expose a crack in the wall, because the rest of us can hear them.

Today marks the culmination of a week of action organised by COPINH to mark the one year anniversary of Berta Cáceres’ killing, and to signal their continued indignation at the repression of indigenous communities in Honduras, and intensifying human rights violations in the country. They ask people to join them in the use of the hashtags #BertaVive and #COPINHsigue, to show the perpetrators that this indignation is felt worldwide.

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